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2017 DIGILAW 585 (JK)

Masarat Nazir v. Zaffar Hussain Beigh

2017-08-09

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : 1. Instant revision petition is directed against the order dated 27.05.2017, passed by the court of learned Principal District Judge, Srinagar, in file No. 32/G. 2. The petitioner and respondent No. 1 were married to each other. The strained relationship ended in a divorce but not before two female babies were born. Respondent No. 1 (father) filed petition under Section 25 of the Guardian and Wards Act before the Court of learned District Judge, Srinagar. Objections were filed by the petitioner highlighting therein that the petition is not maintainable on the ground that the minor children were not in the custody of the respondent. Plain language of Section 25 prescribe that the application can be filed only when the ward is removed from the custody. In short, it is contended that physical removal of the ward from the custody is a pre-condition for maintaining application under Section 25 of the Guardian and Wards Act. 3. Learned District Judge after considering the rival submission and the law referred to therein and after observing that there is no merit in the plea taken against the maintainability of the petition, has repelled the contention as raised. 4. Learned counsel for the petitioner submits that physical removal of the ward from the custody being a pre-condition does not admit of any other substitute for maintaining the application under Section 25 of the Guardian and Wards Act. 5. The contention as has been rejected by learned District Judge has to be upheld because firstly in the beginning of the application as filed it has been specifically pleaded by the respondent (father) that the custody of the ward has been changed and has been removed from the petitioner. Whether change or removal of the ward from the custody of the petitioner was physical or otherwise are the matters to be considered during trial of the application. That apart, learned counsel for the respondents has rightly placed reliance on the judgment captioned Rosy Jacob vs. Jacob A. Chakramakkal, (1973) 1 SCC 840 . Whether change or removal of the ward from the custody of the petitioner was physical or otherwise are the matters to be considered during trial of the application. That apart, learned counsel for the respondents has rightly placed reliance on the judgment captioned Rosy Jacob vs. Jacob A. Chakramakkal, (1973) 1 SCC 840 . It shall be advantageous to quote following portion from para 11 of the Judgment: “It was strenuously pressed by Shri Balasubaramania lyer the counsel for the appellant wife that the husband's application under Section 25, Guardians and Wards Act was not competent because none of the children had been illegally removed from the lawful custody of their father, the custody of the two children having been lawfully entrusted to the wife in proceedings to which the husband was a party. It was emphasized in this connection that the custody of the girl Maya and of the boy Mahesh had been lawfully entrusted to the wife by a competent Court and unless there is actual physical removal of the children from the custody of the father, Section-25 would, not be attracted.” 6. While dealing with said contention, what the Hon’ble Supreme Court observed is recorded in para 15 of the judgment. Following portion from para 15 shall be relevant to be quoted: “...........In our opinion, the dominant consideration in making orders under S.25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. From this point of view, in case of conflict or dispute between the mother and the father about the custody of (their children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case. There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under S.25 merely because there is no defect in his personal character and he has attachment for his children which every normal parent has. These are the only two aspects pressed before us, apart from the stress laid by the husband on the allegations of immorality against the wife which, in our firm opinion, he was not at all justified in contending. Such allegations, in view of earlier decisions, had to be completely ignored in considering the question of custody of the children in the present case. The father's fitness from the point of view just mentioned cannot over-ride considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute, generally to be better fitted to look after the children-being normally the earning member and head of the family-but the Court has in each-case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they got their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels; nor are they mere play- things for their parents. Absolute right of parents over the destinies and the lives of their children, has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us have erred in reversing him on grounds which we are unable to appreciate. 7. The contention of learned counsel for the petitioner, in view of the law laid down, has been rightly repelled. 8. While dealing with the wards, the paramount consideration is the welfare. For ascertaining proper welfare of the wards, the matter requires proof which can be collected during trial of the application. Serious allegations have been levelled against the petitioner in the application filed by the respondent under Section 25 of the Guardian and Wards Act. In the context of those allegations, welfare of the ward has to be objectively assessed which can be done after recording evidence of both sides. 9. Viewed thus, this petition has no merit, as such, dismissed. Learned counsel for the parties shall ensure appearance of the parties before the trial court on 16th August, 2017. 10. In the context of those allegations, welfare of the ward has to be objectively assessed which can be done after recording evidence of both sides. 9. Viewed thus, this petition has no merit, as such, dismissed. Learned counsel for the parties shall ensure appearance of the parties before the trial court on 16th August, 2017. 10. Trial court record along with copy of the order be sent to trail court forthwith.